Concurrent delay in building work

Delays to building work may be caused by:

events which are not under anyone’s control,

actions or omissions by the employer and

actions or omissions by the builder

If events from any two of these categories occur concurrently
there is concurrent delay.This is potentially
significant where the building contract provides different remedies for delays arising
in each category.Much legal dispute has
arisen over the correct remedies for concurrent delays and courts in different
jurisdictions have adopted differing principles in deciding the
remedies.Some building contracts have
been modified in response to legal precedent and, in many cases; the
modifications remain to be tested in court.

Approaches to disputes over work delayed by multiple causes,
which have been adopted by the judiciary, include:

Dominant cause, in which the award is based on
which delay can be shown to have had the overriding effect.

Apportionment of time, in which the effect of
each cause is assessed allowing the employer to recover damages for the delays
caused by the builder and the builder to obtain extensions of time with loss
and expense for delays caused by the employer.

The award of extensions of time without compensating
the builder for the associated loss and expense.

Concurrent is defined by the Oxford English dictionary as “occurring
or operating simultaneously or side by side”.Taking this definition, truly concurrent delay is unlikely to occur.One cause of delay is likely to start first
and, while it may overlap with subsequent causes of delay, it would be strictly
incorrect to characterise these overlapping delays as concurrent.

The problem which has led to the debated and diverse
approaches to delayed completion claims is perhaps more to do with the lack of
certainty over the history of events than to disagreement over the applicable
legal principles. When delay occurs, its
initial effect on progress may be immediately apparent but how this will affect
completion often cannot be predicted with certainty.Even were delays to progress to be punctually
fed into a computerised critical path programme to generate predicted delays to
completion, the possibility of modifying sequencing, methodology, staffing,
etc. to reduce delay, remains.

To predict late completion without exploring ways to overcome
incidental disruption and delay may be said to show a want of care and, to be incapable
of adapting work on site to overcome all and any causes of delay and disruption,
to show a lack of skill.To claim more
time with payments for loss and expense based on the absence of skill and care
is not obviously a sound basis for a sustainable claim and some contracts seek
to make a builder’s right to an extension of time contingent on its using its best
endeavours to prevent delayed progress causing late completion.

Where the employer prevents
the builder completing on time, there is a sound basis for deciding it is not entitled
to damages for the consequential late completion.Where the builder has delayed completion
through its own fault, there is an equally sound basis for not extending time
and payment.Where both causes of delay
occur and overlap, the English courts appear presently to favour an unpaid
extension of time. [1]This accommodates the difficulty of
properly apportioning blame to each culpable act but is such a compromise the
best we can do?